Last week the Commission on Unalienable Rights issued its final report. The Commission was created by US Secretary of State Mike Pompeo in May 2019 to “provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.”
It would, Pompeo said, undertake “one of the most profound reexaminations of the unalienable rights in the world since the 1948 Universal Declaration,” as well as “an informed review of the role of human rights in American foreign policy.” He argued that “America’s Founders defined unalienable rights as including ‘life, liberty, and the pursuit of happiness.’ They designed the Constitution to protect individual dignity and freedom. A moral foreign policy should be grounded in this conception of human rights.” Yet, Pompeo cautioned against creating new categories of rights, which he argued human rights advocates had pursued: “when politicians and bureaucrats create new rights, they blur the distinction between unalienable rights and ad hoc rights”.
Unalienable and ad hoc
While Pompeo’s creation of the category of “ad hoc rights” itself raises questions, critics raised concerns from the outset that the commission would provide an intellectual argument for a narrow understanding of rights and for undermining rights – indeed, one of the first invited speakers called for protecting an “irreducible minimum” of human rights.
In particular, many feared that the commission would be used to undermine a wide swathe of gender-related rights including women’s rights, LGBT rights, and abortion rights, as well as undermine any claims to economic, social, and cultural rights by focusing on what have long been the mainstay in US understanding of rights – namely civil and political liberties. Indeed, a year ago more than 400 NGOs and individuals signed a letter to Secretary Pompeo highlighting many of these concerns.
Given the composition of the Commission – and the eventual conclusions – these fears were well-founded. The Commission was a rogue’s gallery of natural law enthusiasts, anti-abortion activists, and supporters of religious rights as the most important right. There was no balance on the Commission, and its conclusions seem to have been pre-ordained.
The Chair of the commission, Mary Ann Glendon, a former US ambassador to the Vatican, won an award for her anti-abortion activities and has argued that same-sex marriage is a “‘social experiment’” that impairs the rights of children. Other members of the commission share this anti-abortion, anti-LGBT agenda. Jacqueline Rivers identifies marriage as a “gift from God” and argues that “the divinely established order of marriage between one man and one woman is challenged.” And she decried the fact that Christians who stand up against marriage equality are “reviled,” thus tapping into the Christian Right’s fear of oppression.
Another commission member, neoconservative scholar Peter Berkowitz, denouncing the linking of “human rights to a secular and enlightened left-liberalism,” explicitly tied human rights to Christianity: “Grasping the old — and enduring — connection between human rights and Christianity could help curb excesses that these days damage both progressivism and conservatism.” Other commission members, including Rabbi Meir Soloveichik and conservative legal scholar Paolo Carozza, argue that some rights can be violated in the name of religious freedom – such as allowing religious institutions and businesses to opt out of offering contraception as part of their health insurance packages. Carozza has also identified third generation rights, such as the right to development or a healthy environment, as a target for the commission.
Judaeo-Christian roots and Americanist vision
From the start, there seemed to be a clear focus on highlighting the religious (and in particular Christian or Judeo-Christian) roots of a particular understanding of “natural” rights, which corresponded to a slimmed down version of first generation civil and political rights, with religious rights at the top.
The discussion in the open committee meetings indicated a strong focus on the part of the Commissioners on the US as the fount of human rights, going back to the founding of the country. There was little recognition that the US had played a significant role in developing the extensive international normative and institutional human rights framework. Rather, a constant theme was to put an American (or what Pompeo would call Americanist) stamp on human rights, and a feeling that the rest of the world had perverted the ideal notion of rights that the US had long ago given to the world.
Indeed, Pompeo said that the human rights community had “lost its bearings” as it created “new categories of rights” and was no longer “a moral compass.” The Commission could thus “help reorient international institutions specifically tasked to protect human rights, like the United Nations, back to their original missions” – in an Americanist vision.
The attack on multilateral human rights institutions
This attempt to reexamine and constrain the concept of human rights comes in the context of an unprecedented attack on the international human rights regime by the Trump administration.
While support for international human rights norms and mechanisms has waxed and waned over the course of US administrations, and various administrations have instrumentalized human rights in US foreign policy, the core American exceptionalist consensus in the US foreign policy establishment has generally included rhetorical support for the broad human rights regime. Yet, the Trump administration’s assault on multilateral human rights institutions is qualitatively different. And the Commission helps to provide the intellectual (if severely flawed) justification for the administration’s actions.
The Trump administration’s assault on human rights is widespread and has the potential to both damage the multilateral human rights regime as well as alter the US’ identity as a human rights protecting and supporting country. The violations of human rights norms and attempts to undermine human rights institutions include:
- Banning Muslims from the country, criminalizing asylum-seeking, and locking undocumented immigrant children in cages;
- Advocating torture;
- Withdrawing from the UN Human Rights Council, while using diplomatic pressure to ensure that the US was not investigated by the Council for racism in the wake of the police killing of George Floyd;
- Threatening employees of the International Criminal Court with financial and travel sanctions for investigating the conduct of US personnel in Afghanistan, and specifically naming such employees;
- Embracing autocrats, such as Russian President Vladimir Putin, Hungarian Prime Minister Victor Orbán, Philippines President Rodrigo Duterte, and Chinese leader Xi Jinping, to the extent that President Trump has been accused of having “dictator envy”.
As a result of these violations, international perceptions of the US have changed. David Kramer, a former assistant secretary of State for human rights in the George W. Bush administration (which had its own problems with human rights) says that “People advocating and fighting for democracy, human rights and freedom around the world are disillusioned by the U.S. government and don’t view the current administration as a true partner.” Pompeo has recently led resurgent criticisms of China (and Russia), and has, for example, criticized China for its treatment of the Uyghurs and for the new national security law in Hong Kong. While these criticisms are welcome, they must be seen in the wider context of geostrategic maneuverings rather than as a principled stance on human rights.
Meanwhile, in the wake of the George Floyd killing, the International Crisis Group, which regularly publishes warnings about instability and human rights violations in countries experiencing war and other violent conflict, took the unprecedented step of publishing a statement describing “unrest” in the country and calling on the Trump administration to stop using “incendiary rhetoric.” This is language that is usually reserved for countries that might be viewed as outlaws.
The Commission’s report confirms many of the fears highlighted above. It provides an historical (or perhaps ahistorical) and theoretical justification for focusing on a reduced set of rights which are compatible with a conservative religious and economic agenda. While many of the so-called “new rights” which are part of that agenda – including LGBT rights – are not explicitly targeted for downgrading to non-unalienable status (and given the prominence of the LGBT rights agenda, it is rather curious that this was not mentioned even once), the message is clear: there are a few core “unalienable” rights which are central to the American ideal – religious liberty, property rights, and rights related to democratic participation.
All other hard-won freedoms are contingent, subject to democratic processes. While there are serious debates to be had about the source and status of rights, this report does not make a meaningful contribution. Rather, it is a highly politicized document clearly intended to justify the Trump administration’s America First agenda with its nationalist and populist emphasis on US sovereignty and exceptionalism.
America First – what the report says
The report devotes the first 20 pages on a deep discussion of the role played by the US in developing what it calls “The Distinctive American Rights Tradition.” There is much talk of God, although the report is careful to include mention of “reason”. But the message is clear: “the very ideas of human nature, objective reason, and a creator God have come into disrepute among intellectuals.” This report is a retort to those “intellectuals.”
The report talks a lot about the Declaration of Independence from where the term “unalienable” comes from. There is no mention of the French Revolution or the Enlightenment which formed the background for the Declaration of Independence. It does mention “beautiful Biblical teachings,” as well as classical Rome and classical liberalism, but make no mistake – it was those plucky colonialists, informed by God, who came up with the idea of freedom for which the US is a “beacon of hope” today.
There is no mention of the French Revolution or the Enlightenment which formed the background for the Declaration of Independence.
The report draws a strong distinction between “unalienable rights” (or natural rights) and positive rights. The former comes from the natural law tradition which asserts a natural order of things which usually (although not always) comes from a deity, while the latter is the positivist law tradition which looks at what governments say rights are – e.g. via international human rights covenants and treaties. It correctly points out the problematic nature of positivism – that states can change their minds (and certainly the US appears to change its mind depending upon what government is in power about some pretty important human rights, like torture). On the other hand, it does not cast a similarly critical eye on the natural law foundations of human rights – that it is not possible to point to or see or touch this “natural” law. Some may see it in “beautiful Biblical teachings,” but that is hardly going to satisfy everybody. The Founding Fathers declared certain rights to be “unalienable” as “endowed by their Creator” – end of story.
These “unalienable” rights number two – property rights and religious liberty. Although there is a wider gloss put on property rights (for example it serves to limit government, another plank in the conservative agenda), in the end this is a justification for the predatory capitalism practiced in the US. Other economic rights might be nice to have – the report mentions the right to control one’s labor, although given the anti-labor, anti-union stance in the US, it is difficult to take this seriously – but they are not “unalienable” and are thus subject to democratic decision-making. There is much talk about the near-perfection of American democracy, but no recognition that democratic decision-making can lead to restrictions on rights. Since the right to healthcare is not “unalienable,” whether one lives or dies literally comes down to one’s employer’s beneficence (and whether one has a job in the first place).
Surely there is an argument for the right to life to be unalienable – but of course that would undercut arguments for the death penalty which the US clings to in defiance of most of the rest of the democratic world. And as we have seen, the elevation of religious liberty above all else provides justification for a whole raft of violations of rights under the guise of practicing one’s religion – discrimination against gay men and lesbians and denying adequate health care to women to name but two.
The report makes weak attempts at times to be positive about “new” economic rights – it recognizes that “a certain level of material well-being is necessary for freedom” – but these are still subsidiary to “older” civil and political rights – thus reifying the outmoded Cold War distinction between Western civil and political rights and Eastern economic rights. The report points out that “the economic and social rights of the UDHR can be fully realized only in polities with adequate fiscal and material resources.” The authors seem to forget that the US is the richest polity the world has ever seen. Certainly it could, if it wanted to, ensure that every single person had adequate health care – like most other advanced industrialized countries. But of course, that would interfere with “freedom.” The report notes difficult trade-offs – for example investing in health vs. education vs. unemployment protection – but does not tackle other relevant ones – i.e. adequate healthcare or food vs. funding a military that could destroy the world many times over. Perhaps this is just a reflection of the limits of the authors’ imagination.
The authors seem to forget that the US is the richest polity the world has ever seen. Certainly it could, if it wanted to, ensure that every single person had adequate health care.
This long exegesis on the perfection of the American founding eventually gives way to mention of the Universal Declaration of Human Rights (UDHR). But again, it is clear that the US experience provides a model. The report is at pains to point out that the UDHR is not a treaty and does not carry any legal obligation. Indeed, it lauds the UDHR as a “spare” document focusing on “a fairly small number of rights” which “belongs to the same modern tradition of freedom as does the Declaration of Independence and the U.S. Constitution.”
The report refers to an “International Bill of Rights” but does not articulate exactly what that is. Doing so would recognize that the UDHR laid the basis for a much wider array of binding human rights documents. The US has ratified one of the other two elements of the International Bill of Rights – the International Covenant on Civil and Political Rights (apparently because they are unalienable), albeit with significant reservations – but not the International Covenant on Economic, Social, and Cultural Rights (which encompasses “new” rights which are not unalienable). The ICCPR is only mentioned on one page; the ICESCR is not mentioned at all. And while there is vague reference to other international treaties, apparently the US only signs up to treaties where it is committed to upholding the terms of the treaty, whereas other states will sign up regardless of intent.
And anyway, what really matters apparently is whether states are committed to the ideas behind the treaty rather than legal obligation. While there is something to these arguments, it is also extremely self-serving. Other western democratic states also have a commitment to human rights norms and seem a lot more comfortable legally committing themselves to these norms than the US. Indeed, the US has only ratified 5 out of 18 international human rights treaties and protocols. This is a reflection of the sovereigntist American Exceptionalism which this report serves to justify.
The report is particularly derisive of “soft law” – “non-binding resolutions, declarations, standards, commitments, guiding principles, etc. which have proliferated with supposed little democratic oversight by “self-appointed elites.” This of course fails to recognize that this soft law arises from institutions and processes that the US participates in (and indeed helped to establish), and that it helps to clarify what particular rights mean in practice. But by deriding these institutions and processes, the authors further support the sovereigntist position and provide the basis for critique of (and withdrawal from) any body which does not do the US’ bidding and which may actually dare to criticize it or its allies – e.g. the UN Human Rights Council.
There is a deep suspicion of multilateralism that actually requires the US to do anything. It criticizes international human rights institutions as “rife with serious flaws” which “lack democratic legitimacy inasmuch as they vest enormous discretion in the professional [would they prefer they be unprofessional?] elites [there’s that word again] who staff their permanent bureaucracies.” Further, these institutions are frequently ineffective. There appears to a lack of recognition that it is frequently states themselves (including the US) which undermine the effectiveness of the institutions they have set up.
There is a deep suspicion of multilateralism that actually requires the US to do anything.
The curious thing about this report, written by supposedly serious intellectuals (but obviously not the ones that have rejected god) is how uncritical it is. While it recognizes a couple of shameful human rights episodes in US history which cannot be ignored – namely slavery and the denial of women’s voting rights – it is very vague on any other shortcomings. It lauds the US role in bringing down authoritarian governments in Latin America and the apartheid government in South Africa, but there is nary a word about the role the US played in upholding those same governments (witness Jeanne Kirkpatrick’s self-serving distinction between communist totalitarian governments and pro-Western authoritarian dictatorships, and Ronald Reagan’s attempts to undermining the anti-apartheid movement in the name of fighting communism) or undermining democratic governments (anybody remember Mossadeq or Allende or the contras?). And there certainly is not any reflection on the litany of actions President Trump has undertaken to undermine human rights.
It lauds the US role in bringing down authoritarian governments in Latin America and the apartheid government in South Africa, but there is nary a word about the role the US played in upholding those same governments.
Overall, this is very clearly a political document. Mike Pompeo set up the Commission to provide a basis for critiquing “ad hoc” or “new” rights and stacked it with people who are skeptical of such “new” rights and are focused more on religious liberty, so it is not surprising that the report identifies religious liberty as “unalienable” and expresses deep skepticism of rights that go too far beyond the creator-endowed rights from 1776 and which actually require the US to do anything. On the one hand, this might be perceived as nothing more than a curious intellectual sideshow.
Who really cares what a bunch of conservative intellectuals – dare we call them “elites”? – think about the perfection of the American Revolution? After all, they have already been out there advocating against abortion rights, marriage equality, or the right to a healthy environment. And they have already been arguing, for example, that religious freedom allows some groups to deny elements of healthcare – i.e. contraception – to their employees. These are strict constructionists who cannot escape from the eighteenth century. We should just leave them to their antediluvian ideas.
The problem is that the commission has provided a pseudointellectual justification for a rolling back of human rights protections and for Trump’s America First sovereigntist anti-multilateral stance. As noted, LGBT rights are not mentioned in the document at all – a curious omission given their current salience and standing as “new” rights. Yet, they are a clear target. If they are “new” rather than “unalienable,” then they can be discarded at will. And raising religious rights above everything else provides justification for the religious right to do just that. Think god says that gay people are an abomination? Fire them! Think they shouldn’t be allowed to marry? Pass legislation explicitly outlawing same-sex marriage! Think women should not have control over their bodies? Allow companies to deny access to contraception under healthcare provisions! Furthermore, think that the globalist conspiracy is out to destroy the US via (admittedly ineffectual) international institutions? Pull out of them, work to undermine them, and threaten their employees! This is all OK because the Founding Fathers say it is OK.
There are serious, ongoing debates to be had about the origin and precise contours of human rights. But the commission does not really engage seriously with those debates Instead, it asserts an American Exceptionalism that serves to exempt the US from international human rights standards since it has already supposedly perfected human rights. It justifies Trump’s America First policy. That is dangerous and serves to the undermine the positive (if ambiguous and hypocritical) role the US has played in establishing and maintaining the international human rights regime. It also provides cover for other states to claim to have their own understanding of human rights which allows them to violate any rights they do not like (except of course for Judeo-Christian religious freedom). By asserting a very small set of “unalienable” rights, it does great damage to the modern human rights project.